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By Lindsay Proskey

Recently, the Seventh Circuit dismissed thousands of claims against Pfizer, the manufacturer of a generic testosterone drug, Depo-T, for inadequately warning consumers that Depo-T increased heart attacks in older men.[1] The consumers' right to relief hinged on Depo-T’s classification as a generic or brand name drug. The Seventh Circuit found the plaintiff’s claims preempted under federal law and barred by Supreme Court precedent, leaving these consumers without recourse. The controlling Supreme Court precedent and outdated FDA rules collectively frustrate state tort laws, impede on consumer rights, prevent injured consumers from judicial relief, and insulate generic drug companies from state product liability law under the guise of preemption.

Federal Preemption

Federal law “preempts” or displaces state law when state and federal law conflict. The doctrine of preemption derives from the Supremacy Clause[2] of the United States Constitution. Upon state ratification, federal law became superior over state law, within the realm of constitutionally delegated authority, thereby granting states the rights and powers “not delegated to the United States.”[3]  Traditionally, states have the power to establish and enforce laws protecting the welfare, safety, and health of the public. Since federal and state governments have both exclusive and concurrent powers, a problem exists when both levels of government regulate the same subject matter. Where preemption applies, federal law trumps state legislatures, courts, administrative agencies, and constitutions. Thus, the Supreme Court accepts the Supremacy Clause as a “basic constitutional command that all conflicting state provisions be without effect.”[4]

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By Daniel M. Kotin

prescription mistakes, Illinois medical malpractice lawyer

Many times, injuries caused by prescription drugs are the fault of a medical doctor committing medical malpractice.  Other times, the injury is caused by a defective drug and the claim is a product liability case against the drug manufacturer.  A third category of cases involves injuries caused by prescription errors due to misfiling of prescriptions at pharmacies.

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By Timothy S. Tomasik

When a generic prescription drug causes injury to a patient – even permanent neurological injury or death – the patient cannot sue the maker of the generic drug, even if the patient could have sued had he or she been administered the name brand drug instead.

Why Are Generic Drug Manufacturers Essentially Immune From Suit? 

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